WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. THIS BLOG HAS BEEN CALLED "THE DEFINITIVE BLOG ON MIAMI CRIMINAL LAW" BY THE NY TIMES, THE WASHINGTON POST, THE POPE, AND DONALD TRUMP WHO ALSO ONCE SAID IT WAS "REALLY GREAT". POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Wednesday, January 10, 2007

WHAT'S A PD WORTH?

From the pages of the NY Times opinion section on Monday January 8, 2007 , comes this startling analysis from Judge Morris Hoffman of the criminal bench in Denver, Colorado: a PD is not as econometricly effective as a private attorney. Put simply, a defendant in Denver gets a less severe sentence when he/she hires a private lawyer.

Before the emails in capital letters star flooding in , lets look at the study in depth:

Judge Morris- a criminal court judge, writes that he started with a strong bias in favor of the efficacy of public defenders. Morris, along with two economists from Emory University, reviewed all 5,224 felony criminal cases filed in Denver in 2002.

From the article:

Most other studies measure lawyer effectiveness through indicators like acquittal rates, but we used the one thing criminal defendants care about most: the amount of jail or prison time they receive. Thus, acquittals counted as zero. Probationary sentences likewise counted as zero, unless the probation was combined with some jail time. We counted halfway-house sentences as 120 days, which is typical for Denver defendants. We counted the initial length of a prison sentence without decreasing it for early release or increasing it for parole violations. Life sentences we arbitrarily counted as 110 years.

My economist friends were able to use regression analyses to control for other variables (such as whether a case was plea bargained or went to trial), to minimize the chance that the differences we found were caused by factors other than effectiveness. They also used regressions with different combinations of variables, to ensure that our results were not sensitive to a particular variable.

The results were surprising. The average sentence for clients of public defenders was almost three years longer than the average for clients of private lawyers.But our most notable finding was hidden in one of the variables we had controlled — the seriousness of the case. We had assumed that public defenders on average handled more serious cases than private lawyers, if for no other reason than that such cases carry higher bonds, and defendants who can’t make those bonds are often rendered indigent by their pretrial incarceration. The length of their clients’ sentences would of course be distorted by the fact that they handle more serious cases with longer potential sentences.

But when we removed the control for the seriousness of the crime, public defenders performed relatively worse, not better (five years more incarceration versus three years more).

The study also recognized that indigency is not a binary system: meaning it is not correct to say someone is either indigent or not indigent. The study recognized that defendants make rational economic choices when deciding to accept a designation of indigency- and a public defender, or to raise funds and hire a private attorney.

Again from the article:

Imagine a guilty, marginally indigent defendant facing a relatively minor felony (for which he will most likely get probation). Now add to the mix the fact that his crime was captured on videotape, meaning he has a small chance of avoiding conviction. It is unlikely such a defendant would deplete his and his family’s and friends’ resources to hire a private lawyer when he could get a free public defender to achieve the same result.At the other end of the spectrum, imagine a marginally indigent defendant charged with first degree murder, and imagine that he is innocent. Wouldn’t that defendant do everything in his power to marshal the resources to hire a private lawyer, if he believed, rightly or wrongly, that the private lawyer were more likely to achieve an acquittal?In other words, marginally indigent defendants who choose public defenders tend to be guilty. And of course if that’s true, it’s not at all surprising that public defenders would achieve less favorable outcomes.

Rumpole theorizes that there are more variables then the study takes into account, but the study is a good start. The variables that would tend to support the findings of the study are that the Public Defenders tend to be more inexperienced and have more cases than a Private Attorney, a combination that would support the findings.

But on the other hand, could there be a systemic bias against an indigent defendant? Sensing a weakness, do prosecutors unintentionally make stiffer plea offers to PD’s? Are fees for the “unwinable” cases so exorbitant that those cases tend to stay with the PD’s? The author’s statement that indigent defendants who choose to stay with the PD tend to be guilty creates a bias in the analysis. Therefore, this bias needs to be accounted for before a true econometric statement can be made that PD’s are less effective than Private attorneys.

76 comments:

I'd say the study is highly inaccurate, and probably invalid, based on the absence of two very important sentencing factors. Due to lack of information, the authors were forced to ignore the defendant's criminal history and custody status.

The examination of Mr Brummer and his office is long overdue. It is unfortunate that it must be done in public, but the question is where else could it be done? Mr. Brummer is an elected official that for far too long has been undeservedly revered and coddled.

The truth be known, behind that soft voice is a detached administrator hiding behind his falacious claim of greater moral standards. He has been a coward of the enth degree for years. He orders others to be his hatchet man and then portrays himself as the voice of reason. He is the Godfather of the Justice Building Wars between the PD's the ASA's and the judges. He just sits back and watches the caos with glee.

Even when his minions are wrong he supports them because he understands that the battle and the disruption serves a purpose for him. He rewards bad behaviour and questions the sincerity of those who operate in a professional manner.

It is unfortunate that the only candidate to run against him was Gabe Martin. Forgetting all else, he never had a hope. It is time for a new PD, but we will have to wait another two years for that. Hopefully it will not be someone raised and nutured in the bosom of the great Pubic Pretender and will bring real change to that office.

I have a bone to pick with the Herald. I know they employ headline writers, so this is probably not the fault of our favourtie local scribe, BUT CHAVEZ IS NOT APPEALING. THIS IS NOT AN APPEAL. IT IS A POST CONVICTION EVIDENTIARY HEARING.

Why does this bother me so much? Because thousands of Miamians are reading the Herald saying "why should he be aloowed so many appeals?" If you polled the public, they would probably agree with a law not allowing anyone to appeal without permission. The headline feeds into the media created monster that the criminal justice system allows endless trials and appeals until some lawyer finds a name misspelled and then the killer is let free.

The Headline should have been something like "Chavez seeks new trial: Says Public Defender bowed to election pressure."

Anyway, that's my opinion. This Brummer thing is puzzling. Art Koch, experienced lawyer, would not expect him to lie. Same for Stephen Harper and Edith Georgi- and yet someone has their fingers crossed apparently.

"Indigent defendants who choose to stay with the PD tend to be guilty"

I don't think this represents a bias to the study. As pointed out in the article, indigency is not binary. Human nature will lead innocents toward a tendency to fight harder...and spend more money on their defense. Those with plausible arguments of innocence will find it much easier to raise money from family and friends.

The result is that the innocent will have a stronger willingness and ability to fight charges.

I agree with 11:37. And I would also point out that, in my own personal opinion as an ASA, the PDs in Miami are the best lawyers hands down. Kill someone? Pray for Pete Ferrero or Steve Kramer. Burglarize a house? Your average C PD is better than much of the private bar. Sorry, but have no desire to close my eyes and become "the Q," no less hire him.

miami pd's are stellar advocates for the most part. i must admit we have slipped a bit with all the bullshit and this issue with Koch,...what drama. as for vereen- you must be out your mind. he makes real $$. plus, it is a thankless job. brummer will pull out of this just fine..

You're right, I don't write the headlines. I wouldn't be very good at it. It's a very difficult art, to boil my 500 or 1,000 words of copy down to just a few choice words. I'm afraid your proposed headline probably wouldn't fit either, actually.

But I think you may be getting a little bit hypertechnical, at the expense of understanding the public's frustration with "endless appeals."

While the public may not generally understand the difference between an appeal and a motion for post-conviction relief, they do understand that both, in the end, do the very minimum of delaying a sentence and could result in a new trial all together. Keep in mind, the public, as much as they say they don't trust lawyers, actually tends to trust you all a great deal to have already achieved justice in cases like this. So the delays, whether they're called appeals or motions for post conviction relief, tend to frustrate a public looking for swift justice.

I'm all for the careful use of language, but I think blaming the misnaming of a hearing on the public's perception that criminals get repeated bites of the apple misses the point entirely.

I also wonder if the public's appetite for swift justice is a more important issue. But that's for another post, which might include some of the death cases (also featured in the media I might note) overturned with DNA evidence.

cheers,Susannah NesmithMiami Herald(wearing pink pants today, for those who care about that)

bottom line is, and i would put money on this, any law grad who goes to work for the PD or SAO, and actually puts forth the effort to learn, and stays 4 or 5 years will be light years ahead of 90% of criminal attorneys in the SE United States.

One thing is for certain regarding this whole Koch v. Brummer issue.Brummer definitely does not like the publicity that representing someone like Chavez brings to theoffice. Knowing his reputation, I was surprised he kept the case in the firsr place.

How many high profile violent,nasty cases does Brummer keep in house?

Very few and the ones he keeps - like the Lithuanian kid who killed the monk or the juvenile kid in theOrlando 5 - have obvious mitigation built in to their cases (allegations of rape by the monks or being the youthful follower).

Bottom line is this has been Brummer's MO for years - stay out of the news, keep a low profile andno one will challenge him for office.

As for the study regarding publicdefenders v. private attorneys, Iwould include the conduct of the judges as a variable. I wouldn'tbe surprised to learn that judgeseffect the private bars ability to get better deals for than PD's.

For one Judges definitely accommodate private attorneys morein regards to scheduling or should I say non-scheduling of trials.

Another reason is that Judges have often known the private attorneyslonger and are better friends with them.

Actually, I did understand quite clearly that Rumpole thought a headline that was inaccurate contributes to the fact that the public thinks criminals get too many second chaces.

My contention was he is wrong. It was a pretty simple contention actually.

Let me see if I can try to explain myself better:Calling a motion for postconviction relief an appeal does not change the fact that it is what the public views as yet another second chance for a convicted killer. So, while I would like for every word you read in our paper to be absolutely accurate, at all times, I don't think this inaccuracy contributed one iota to the problem Rumpole complained of.

The public wants swift justice and doesn't get it because of the many ways death row inmates can and do try to get their convictions and sentences overturned, and the time that takes. That's not the media's fault.

Sorry to post so late. That happens when a client keeps buying you drinks to celebrate a NG.

Anyway, Ms. Nesmith wrote in part:Calling a motion for postconviction relief an appeal does not change the fact that it is what the public views as yet another second chance for a convicted killer

Rumpole replies, the Herald does not have to call it a motion for postconviction relief in the headline. The headline could read: Chavez asks for new trial.

The opening paragraph could read:

His appeal denied, Chavez filed a last resort motion claiming the assistant public defenders assigned to his case were told by their boss- Public Defender Bennett Brummer - not to vigorously defend the case as Brummer was facing a contested election during the time his office handled the case.

My point is- as attorneys we all hear from our client's families that they will win on appeal. Why? The media- not just the Herald, plays up every appellate reversal which leads to the perception the 3rd DCA is just sitting there waiting to let murderers go free because the clerk substituted a coma for a period on a document.

How many times has the local section led with: Conviction Affirmed in murder case? Was there a headline when Chavez lost his appeal?

I understand that "if it bleeds it leads" but I am just calling for more precise language in reporting on criminal cases.

One last point- is it true that newspapers adopted a rule to label all not guilty verdicts to read "was found innocent" because in the days of stringers and teletype there was a fear the "not" would be left out of the sentence "not guilty."??

PS> For what its worth, if a defendant made a blind choice of lawyers- that is if he put all private attorneys in one hat and all pds in another hat, In Miami, I would guess he would have much better chances of picking a very good lawyer out of the PD hat, and a much much greater chance of picking a completely incompetent lawyer out of the private defense attorney hat. My opinion- based on 20+ (you didn't think I would give a clue and narrow my time here down did you?) years of watching both types of lawyers work.

With all due respect, ANY and ALL errors in the media contribute to the misconceptions of the public.

I agree with Rumpole on this, and would simply add that it's a slippery slope...you may be correct that this particular error doesn't contibute an "iota" to the public's attitudes (especially considering this defendant); the problem is how many other small errors did it take to create those attitudes? And I would hazard to say that whoever was at fault in those situations thought, as you do, that the small error was of no consequence. Misinformation is more evolutionary in its effect than revolutionary. It all adds up.

Funny thing. We get a reporter who cares about what we do and wants to do a good job assigned to the courthouse. She talks to us freely and is willing to engage us on a blog where anonymous folks take swipes at virtually everyone. And some of you morons jump on her case every chance you get. Pathetic.

Girl please. What kind of crack you smokin'? The only good looking PD in the whole building is Warren Swartz. His eyes and Davitoesk looks seal the deal.

Really. Come on. The only thing that makes any of the PDs even remotely attractive is the fact that they hang around drinking with women who soon become ... shall we say ... "influenced" by their charm. Most single PD guys could never get laid without that "help."

SAOs on the other hand -- now those are a bunch of guys who are not afraid to stick around at the end of the night when the lights are turning on in the bar.

Rump, The Denver study has No validity. It says that it did NOT count NGs nor probation pleas w/out jail time. How can you say PAs do better then PDs if NGs, PTI & Probation isnt counted. Also only 5,200 cases? Come on Dade's PD does that in 2 monthsD. Sisselmanps : why aren't I one of the top 3 sexiest PDs?

Have you all not seen that Nesmith is full of BS. She is dumber than Brummer. Wait, is that even possible. Well, at least blood related. She should write for the Star and cover Aliens or something. Wait, that may be too much for her. Hey Nesmith, where do you live and hang? I would love to know who the hell feeds you so much incorrect information. No wonder so many people think The Herald sucks.

Enough. Nesmith, you truly and surely suck the big one. Your mother and father must be proud. By the way, I heard you are not married. Frankly, I am not surprised. Bye...

3d DCA Watch -- Bye Bye Bunker Edition!
-
So one time in bunker camp the Resplendently Robed Ones™ decided to pretty
much chuck the month of December and go explore the beautiful environs of *Centra...